Guides to a Guardianship

What is a Guardian?

A Guardian is “a person lawfully invested with the power, and charged with the obligation, of taking care of and managing the property and rights of a person who, because of age, understanding, or self-control, is considered incapable of administering his or her own affairs.” Legal Dictionary

What does that mean? Essentially, a guardian is a person who is appointed a legal relationship to take care of someone who is either a minor, a person with developmental disabilities, or an incapacitated adult. This appointed person is responsible to manage their affairs such as legal concerns, financial management, and health care decisions in addition to the necessary day-to-day care.

It is important to know that “depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions. In many states, a person appointed only to handle finances is called a ‘conservator’” (Guardianship and Conservatorship).

The Three Types of Guardianships

Minor Child

This type of guardianship occurs when a minor child’s parents pass away, or become unable or unwilling to provide parental care.

In the case of death, if parents do not have a guardian named in their will, one will be appointed by the judge in Probate Court. In cases where the parents are alive but unable or unwilling to manage care of the minor child, this guardianship will be decided in Magistrate Court once dependency is established. For example, this could occur if the child may have been taken out of the home and might be in the foster-care system.

Most parents will appoint a family member or friend to take guardianship of minor children if they are unable or unwilling to care for them. A guardian of a minor takes over the care and upbringing of the child, making all legal and general parenting decisions.

Person with Developmental Disabilities (DD)

Though many adults are believed to be capable of making financial, healthcare and life decisions on their own behalf. In cases where the court determines an adult is incapable due to a developmental disability of making those decisions, that individual will be appointed a guardian. This guardian is tasked with looking after the affairs of the person with developmental disabilities.

Incapacitated Adult

An incapacitated adult may be impaired by mental illness or deficiency, physical illness, or disability to the extent that they have lost the ability to take care of themselves and make their own decisions. The court must determine that this person is unable to manage their own affairs, at which time they will need an appointed guardian.

Who can be a Guardian?

Any competent adult interested in an affected individual’s well-being can apply through the court to be a guardian. In most cases, a guardian will be a relative of the minor child (except the child’s parents) or incompetent adult. In the cases involving an adult, appointed guardians are is most often the spouse, adult child, or sibling of the ward. It can be a friend or neighbor as well. In some instances a professional guardian (an unrelated person who has received special training) will be appointed. DD guardians most times are parents or adult siblings.